Fidelis Munyoro — A Harare woman, Ms Tariro Lebogang Mutenda, has lost her bid to block businessman Mr Upenyu Mashangwa from selling a Borrowdale Brooke house to settle a debt of over US$1,6 million, arguing that it belonged to a Mashangwa family trust and the sale needed her approval as a trustee.
The High Court dismissed her application, with Justice Amy Tsanga finding that the property was never owned by the family trust, rather by the Mashangwa couple, and that previous judgments and arrangements had allowed property to be sold to satisfy a debt.
The property, 655 Borrowdale Brooke Township of 137 Borrowdale Brooke, measuring 4,428 square metres was bought in 2012 by Mr Mashangwa and his late wife, Mrs Blessing Mashangwa.
It was initially bought in the name of the Mashangwa Family Trust, but that had not yet been registered at the time of purchase and so the property was in the names of Mr and Mrs Mashangwa.
The trust was registered later in June 2012 but never formally took transfer of the property, which remained the matrimonial home of the Mashangwas.
Ms Mutenda, who is Mrs Blessing Mashangwa's daughter, argued that the property was owned by the trust and that she became a trustee upon her mother's death.
She sought confirmation of a provisional order, arguing that the sale of the property by private treaty between Mr Mashangwa and judgment creditor, Ms Jemina Gumbo, was unlawful.
Ms Mutenda contended that such a sale violated Rule 71 of the High Court Rules of 2021, which governs execution against immovable property, and required the involvement of the Sheriff.
Her lawyer, Mr Irikidzayi Mabulala, also argued that the agreement was invalid as it excluded the trust and her participation as a trustee. Further, he cited Section 44 of the Administration of Estates Act, which suspends execution against a deceased person's property without court approval.
In response, Advocate Thabani Mpofu, representing Mr Mashangwa and Ms Gumbo, argued that the property had already been declared executable under a writ issued on March 5, 2020, before Mrs Blessing Mashangwa's death.
He emphasised that once a writ is issued, the property is placed in the hands of the creditor, rendering the trust's claims irrelevant.
Adv Mpofu further submitted that in fact the trust did not own the property and suggested it was created fraudulently to shield assets from creditors.
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He argued that the writ remained valid until fully executed, as per Section 69(3) of the High Court Act, and that judicial mortgage principles allowed creditors to execute the sale of attached property.
In her ruling, Justice Tsanga upheld Adv Mpofu's arguments, ruling that the property's status as executable had been confirmed in multiple previous judgments, none of which had been appealed.
She noted that Section 44 of the Administration of Estates Act only prohibited issuing a writ after a debtor's death, but did not bar the continuation of execution where a writ was issued before that death.
